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its agents, had been guilty of gross negligence and those regarding which, the negligence complained of had been of a less inarked character. A distinction certainly difficult to make where the facts upon which it is to be based are entirely in the exclusive possession of the defendant telegraph company.

Possibly the clearest and most logical statement of the law in jurisdictions in which the validity of such stipulations is upheld is that of Hare, J., in the case of Passmore v. Telegraph Co.16 Here the learned judge says: "A railway, telegraph or other company charged with a duty which concerns the public interest cannot screen themselves from liability for negligence; but they may prescribe rules calculated to insure safety and diminish the loss in event of accident, and declare that, if these are not observed, the injured party shall be considered in default, and precluded by the doctrine of contributory negligence. The rule must, however, be such as reason, which is said to be the life of the law, can approve, or at least such as it need not condemn. By no device can a body corporate avoid liability for fraud, for willful wrong, or the gross negliglence which, if it does not intend to occasion injury, is reckless of consequences, and transcends the bounds of right with full knowledge that mischief may ensue. as I am inclined to think, will any stipulation be valid which has the pecuniary interest of the corporation as its sole object, and takes a safeguard from the public without giving anything in return. But a rule which, in marking out a path plain and easily accessible, as that in which the company guarantees that every one shall be secure, declares that if any man prefers to walk outside of it they will accompany him, will do their best to secure and protect him, but will not be insurers, will not consent to be responsible for accidents arising from fortuitous and unexpected

Nor,

Illinois the court says:17 "On the question whether the regulation requiring messages to be repeated, printed on the blanks of the company on which a message is written, is a contract, we held that it was not a contract binding in law, for the reason that the law imposed upon the companies duties to be performed to the public, and for the performance of which they were entitled to a compensation fixed by themselves and which the sender had no choice but to pay, no matter how exorbitant it might be. Among these duties we held was that of transmitting messages correctly; that the tariff paid was the consideration for the performance of this duty in each particular case, and when the charges were paid the duty of the company began, and there was, therefore, no consideration for the supposed contract requiring the sender to repeat the message at additional cost."

In denying the validity of stipulations of this nature, the tendency, however, has been to base the decision, not upon the lack of contract, but avoiding the contract entirely, upon the ground of public policy.18 In the case of Ayer v. Telegraph Co., 19 Emery, J., says: "Is such a stipulation, in the contract of transmission, valid as a matter of contract assented to by the parties, or is it void as against public policy? We think it is void. Telegraph companies are quasi-public servants. They receive from the public valuable franchises. They owe the public care and diligence. Their business intimately concerns the public. It is essential for the public good that their duty of using care and diligence be rigidly enforced. They should no more be allowed to effectually stipulate for exemption from this duty than should a carrier of passengers, or any other party engaged in a public business.

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This rule does not make telegraph companies insurers. It does not make them answer for errors not resulting from

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ship upon them. They engage in the business voluntarily. They have the entire control of their servants and instruments. They invite the public to intrust messages to them for transmission. They may insist upon their compensation in advance. Why, then, should they refuse to perform the common duty of care and diligence? Why should they make conditions for such performance? Having taken the message and the pay, why should they not do all things (including the repeating) necessary for correct transmission? Why should they insist on special compensation for using any particular mode or instrumentality as guard against their own negligence? It seems clear to us that having undertaken the business they ought without qualification to do it carefully, or be responsible for their want of care."

Surely, of all the arguments advanced for and against the validity of stipulations, limiting liability, in telegraph blanks, this is the most powerful, and yet it is not unassailable. There are many messages wholly lacking in commercial value, as to which extreme haste, or extraordinary care in transmission and delivery is not essential, messages wherein error is of no particular moment in so far as actual damage to the sender or receiver is concerned; if, as the decision in this case would seem to indicate, the telegraph company is to be permitted to charge rates commensurate with the necessity of repetition to insure absolute correctness, the sender of the non-commercial message is practically paying for insurance upon something, the value of which he will be unable to measure in damages. That the commercial message may be absolutely protected, the tolls upon the dispatch of a purely personal or social nature must be increased. We do not think the solution of the question lies this way, but rather in regarding telegraph companies as common carriers, sub

transmitting or delivering dispatches,"20 and the courts have repeatedly declared stipulations in telegraph blanks to be void; a similar statute being in force in Nebraska.27 Such statutes have been found, in practice, to work well. Of late years competition has done much to reduce the tolls charged for the transmission and delivery of telegraphic messages. It is, at least, questionable whether it were not better, in the absence of federal control, that uniform statutes should be enacted in the several states similar to that of Indiana, providing, in addition, the maximum rate per mile, or fraction thereof, for telegraphic transmission per word, such rate to be based upon the present generally prevailing charges. Such action would, at least, simplify the entire question. Under the present decisions, the sender's position varies in accordance with the jurisdiction within which he finds himself at the time he delivers his message to the telegraph company for transmission.

In considering the right of the receiver to recover damages against a telegraph company, in cases where stipulations limiting the company's liability have been incorporated in the contract of transmission, there can be no privity of contract between the parties and, consequently, the stipulations cannot be interposed as a defense to an action by the receiver. If we regard the telegraph company as the agent of the sender, the maxim respondeat superior must apply, but the better opinion would seem to be that the company is in no proper sense to be regarded as the agent of sender or sendee. 28 There is a decision to be found,24 holding that the party interested in the dispatch is the real contracting party; we cannot regard this as other than a fiction, utterly untenable. It would seem that the sendee's proper remedy is in an action on the case, an action ex delicto for the misfeasance of the agent of the telegraph company in send

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a nature as to require that malice be the gist of the action.25 The great majority of textwriters have, as a rule, based such recovery upon the duty which the telegraph company, in its quasi-public character, owes to anyone beneficially interested in the message, and decisions are to be found in which the same view is taken. We are not prepared to fully accept this view. It would seem better law to permit the receiver to recover such damages as he may have sustained solely on the ground that the telegraph company has been guilty of a tort to his detriment and we do not apprehead that the presence of stipulations limiting liability, in the contract of transmission, would prove a bar to such recovery. Upon this point, the court in De la Grange v. Telegraph Co.,28 says: "The proposition that the defendants are liable, if at all, only in case the message is repeated as contained in the printed conditions, can be invoked only against the sender of the message, if against any; for it is his message, his language that is to be transmitted, and it is only known to the receiver when delivered and as delivered. He is to be guided by, or informed by what is delivered to him, and he has no opportunity to agree upon any such condition before delivery." If the stipulations be relied upon as a defense to such an action in tort for misfeasance, sufficient notice of the necessity for the repetition of the message, in order to hold the telegraph company liable for negligence or error, must be brought home to the receiver where he has accepted an incorrect message as correct to his detriment.29 It may be that in time, common knowledge, that such stipulations are ordinarily incorporated in the blanks of telegraph companies, will be held to furnish constructive notice of the necessity of having a telegraphic dispatch repeated in order to insure sender or receiver against negligence or error on the part of the telegraph com

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Supreme Court of the United States, April 22, 1901. 1. Quarantine regulations established by the gov ernor of the state on recommendation of a live stock sanitary commission in pursuance of Tex. Rev. Stat. 1895, art. 5043c, whereby the importation of all cattle from the state of Louisiana until the 15th day of the following November is prohibited, because the live stock commission had reason to believe that anthrax had or was liable to break out in that state, are a proper exercise of the police power of the state.

2. The presumption which the law attaches to the acts of public officers exists in favor of quarantine regulations established by the governor on the recommendation of a live stock sanitary commission, with respect to the sufficiency of the information on which the regulations were adopted.

3. Proper quarantine regulations restricting the importation of cattle from another state on account of the danger of disease do not make unconstitutional regulations of commerce.

Statement by Mr. Justice McKenna: This case involves the constitutionality of certain quarantine regulations of the state of Texas. The laws of Texas provide for the creation of a live live stock sanitary commission, consisting of three members appointed by the governor, and prescribe their duty. The governor of the state issued the following proclamation :

The Texas live stock commission having reason to believe that charbon or anthrax has or is liable to break out in the state of Louisiana, from this time forth until the 15th day of November, 1897. no cattle, mules or horses are to be transported or

driven into the state of Texas from the state of

necting carrier, and which had been delivered to the latter in the state of Louisiana. The facts, or as many of them as is necessary to state, are as follows:

The shipment of cattle was made upon a through bill of lading issued by the St. Louis & Southwestern Railway Company, at Plain Dealing, La., for Fort Worth, Tarrant county, Texas, and was a through and continuous shipment. The cattle arrived at Fort Worth on the 28th of August, 1897. The owners were ready to receive them, and tendered the amount of freight due thereon. The tender was rejected, and the delivery of the cattle refused. The cattle remained in the pens of the plaintiff in error, the stock yards at Fort Worth refusing to receive them on account of the proclamation of the governor, and permission, which was asked by the railway company of the live stock sanitary commission, to deliver them to their owners, was also refused on account of the governor's proclamation. Thereafter the railway company shipped the cattle back to Texarkana, to the line of railway from which they were received, by which line they were returned to Plain Dealing, and there tendered to the shippers, who refused to receive them. Thereupon they were sold, after proper advertising, and the proceeds of the sale, less pasturage at Plain Dealing, were tendered to the owners, which was also refused.

Mr. Justice McKenna, after making the foregoing statement, delivered the opinion of the court: To what extent the police power of the state may be exerted on traffic and intercourse with the state, without conflicting with the commerce clause of the constitution of the United States, has not been precisely defined. In the case of Henderson v. New York, 92 U. S. 259, sub. nom. Henderson v. Wickham, 23 L. ed. 543, it was held that statute of the state, which, aiming to secure indemnity against persons coming from foreign countries becoming a charge upon the state, required shipowners to pay a fixed sum for each passenger,—that is, to pay for all passengers, not limiting the payment to those who might actually become such charge, was void. Whether the statute would have been valid if so limited was not decided.

In Chy Lung v. Freeman, 92 U. S. 275, 23 L. Ed. 550, a statute declaring the same purpose as the New York statute, and apparently directed against persons mentally and physically infirm, and against convicted criminals and immoral women, was also declared void, because it im

posed conditions on all passengers and invested

Such a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity. When a state statute, limited to provisions necessary and appropriate to that object alone shall, in a proper controversy, come before us, it will be time enough to decide that question."

In Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527, a statute of Missouri which provided that "no Texas, Mexican, or Indian cattle shall be driven or otherwise conveyed into or remain in any county in this state between the 1st day of March and the 1st day of November in each year, by any person or persons whatsoever," was held to be in conflict with the clause of the constitution which gives to congress the power to regulate interstate commerce.

The case was an action for damages against the railroad company for bringing cattle into the state in violation of the act. A distinction was made between a proper and an improper exertion of the police power of the state. The former was confined to the prohibition of actually infected or diseased cattle and to regulations not transcending such prohibition. The statute was held not to be so confined, and hence was declared invalid.

The relation of the police power of a state and the power of congress to regulate commerce came up again in Bowman v. Chicago & N. W. R. Co.,125 U. S. 465,31 L. Ed. 700, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062. The principle which underlies both powers and the range and operation of those powers was considered. The action was against the railroad company for refusing to transport beer from Chicago to Marshalltown, in Iowa. The refusal was attempted to be justified under a statute of Iowa against traffic in intoxicating liquors and the conveyance of the same by an express or railway company into the state, except under certain conditions. The statute was decided to be a regulation of commerce, to be not within the police power of the state, and therefore void. Leisy v. Hardin, 135 U. S. 100, 34 L. Ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, is of the same general character, and need not be commented upon. See also Scott v. Donald, 165 U. S. 59, 41 L. Ed. 633, 17 Sup. Ct. Rep. 265.

In Schollenberger v. Pennsylvania, 171 U. S. 1, 43 L. Ed. 49, 18 Sup. Ct. Rep. 757, some prior cases were reviewed and the court, speaking by Mr. Justice Peckham, said:

"The general rule, to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly excluded from im

it was held that an inspection law relating to an article of food was not a rightful exercise of the police power of the state, if the inspection prescribed was of such a character, or if it were burdened with such conditions, as would wholly prevent the introduction of the sound article from. other states. This was held in relation to the slaughter of animals whose meat was to be sold as food in the state passing the so-called inspection law. The principle was affirmed in Brimmer v. Rebman, 138 U. S. 78, 34 L. Ed. 862, 3 Inters. Com. Rep. 485, 11 Sup. Ct. Rep. 213, and in Scott v. Donald, 165 U. S. 58, 97, 41 L. Ed. 632, 644, 17 Sup. Ct. Rep. 265."

The exclusion in the case at bar is not as complete as in the cited cases. That, however, makes no difference if it is within their principle; and their principle does not depend upon the number of states which are embraced in the exclusion. It depends upon whether the police power of the state has been exerted beyond its province,exerted to regulate interstate commerce-exerted to exclude, without discrimination, the good and the bad, the healthy and the diseased, and to an extent beyond what is necessary for any proper quarantine. The words in italics express an important qualification. The prevention of disease is the essence of a quarantine law. Such law is directed, not only to the actually diseased, but to what has become exposed to disease. In Morgan's L. & T. R. & S. S. Co. v. Louisiana Bd. of Health, 118 U. S. 455, 30 L. Ed. 237, 6 Sup. Ct. Rep. 1114, the quarantine system of Louisiana was sustained. It established a quarantine below New Orleans, provided health officers, and fees for them, to be paid by the ships detained and inspected. The system was held to be a proper exercise of the police power of the state for the protection of health though some of its rules amounted to regulations of commerce with foreign nations and among the states. In Kimmish v. Ball, 129 U. S. 217. 32 L. Ed. 695, 2 Inters. Com. Rep. 407, 9 Sup. Ct. Rep. 277, certain sections of the laws of Iowa were passed on. One of them imposed a penalty upon any person who should bring into the state any Texas cattle unless they had been wintered at least one winter north of the southern boundary of the state of Missouri or Kansas; or should have in his possession any Texas cattle between the 1st day of November and the 1st day of April following. Another section made any person having in his possession such cattle liable for any damages which might accrue from allowing them to run at large, "and thereby spreading the disease among other cattle, known as the Texas fever." and there was, besides, criminal punishment. The court did not pass upon the first section. In commenting upon the second some pertinent remarks were made on the facts which justified the statute, and the case of Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527, was explained. It was said that the case "interpreted the law of Missouri as saying to all transportation companies: You shall not bring into

the state any Texas cattle, or any Mexican cattle, or Indian cattle, between March 1st and December 1st in any year, no matter whether they are free from disease or not, no matter whether they may do an injury to the inhabitants of the state or not; and if you do bring them in, even for the purpose of carrying them through the state without unloading them, you shall be subject to extraordinary liabilities.' P. 473, L. Ed. 531. Such a statute, the court held, was not a quarantine law, nor an inspection law, but a law which interfered with interstate commerce, and therefore, invalid. At the same time the court admitted unhesitatingly that a state may pass laws to prevent animals suffering from contagious or infectious diseases from entering within it. P. 472, L. Ed. 530. No attempt was made to show that all Texas, Mexican, or Indian cattle coming from the malarial districts during the months mentioned were infected with the disease, or that such cattle were so generally infected that it would have been impossible to separate the healthy from the diseased. Had such proof been given, a different question would have been presented for the consideration of the court. Certainly all animals thus infected may be excluded from the state by its laws until they are cured of the disease, or at least until some mode of transporting them without danger of spreading it is devised."

In Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. Ed. 878, 18 Sup. Ct. Rep. 488, the Husen case was again commented upon, and what the law of Missouri was and was not was again declared. A statute of Kansas, however, which made any person who shall drive or ship into the state "any cattle liable or capable of commu nicating Texas, splenetic or Spanish fever to any domestic cattle of this state shall be liable *

for * damages," was held not to be a regulation of commerce. It was also held that the statute was not repugnant to the act of congress of March 29, 1884 (23 Stat. at L. 31, ch. 60), known as the animal industry act.

What, however, is a proper quarantine lawwhat a proper inspection law in regard to cattle -has not been declared. Under the guise of either a regulation of commerce will not be permitted. Any pretense or masquerade will be disregarded, and the true purpose of a statute ascertained. Henderson v. New York, 92 U. S. 259, sub. nom. Henderson v. Wickham, 23 L. Ed. 543, and Chy Lung v. Freeman, 92 U. S. 275, 23 L. Ed. 550. But we are not now put to any inquiry of that kind. The good faith and sincerity of the Texas officers cannot be doubted, and the statutes under which they acted cannot be justifiably complained of. The regulations prescribed are complained of, but are they not reasonably adaptive to the purpose of the statutes,-not in excess of it? Quarantine regulations cannot be the same for cattle as for persons, and must vary with the nature of the disease to be defended against. As the court of civil appeals said: "The necessities of such cases often require prompt action. If

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